1. This petition is filed for directing the second respondent/manager to pay the petitioner/workman his last drawn wages of Rs. 475 under S. 17-B of the Industrial Disputes Act from 24th July, 1985 onwards pending disposal of the writ petition.
2. The facts which are necessary for the disposal of this application can be briefly stated as follows : The petitioner was working as an earth loader in the limestone quarry maintained by the second respondent. By virtue of a settlement, dated 8th June, 1978 the second respondent agreed to take the workmen on the rolls of K.D.P. and Company and six other unlicensed contractors with effect from 1st April, 1978 on the same terms and conditions applicable to regular employees of India Cements Ltd., subject to their being medically fit. The petitioner was informed on 11th August, 1978 by the second respondent that their company's medical officer found that he was suffering from leprosy and by another letter dated 8th November, 1978 it was intimated that the could appear before the District Medical Officer, Salem if he was aggrieved by the opinion of the company's medical officer, The second respondent terminated the services of the petitioner on 19th December, 1978 on the ground that the District Medical Officer found him unfit to work in the quarry. The petitioner herein obtained two certificates from two skin specialists to the effect that it is a non-infective disease and that he can do his regular duties in the quarry. He challenged the order of termination before the Tribunal, namely, the first respondent. The Tribunal, on examination of the doctors and other relevant materials, held that the non-employment of the petitioner was not justified and directed second respondent to reinstate the petitioner in service with backwages from 27th February, 1982 being the date of reference. Aggrieved by the said order, the management has filed the present writ petition on 24th July, 1985. In Writ Miscellaneous Petition No. 12466 of 1985 this Court made the interim stay of award absolute on condition that the management pays the petitioner Rs. 15,000 on or before the end of October 1986. The above order was challenged in Writ Appeal No. 1118 of 1986 and a Division Bench of this Court directed the management to pay the said amount within three weeks. It is stated that with regard to the request made by the petitioner about the payment of wages as per S. 17B of the Industrial Disputes Act, the Learned Judges observed that he could move by a separate petition. Hence this petition.
3. The said petition was resisted by the second respondent in his counter wherein is state that in view of the order passed by this Court making the order of interim stay absolute on the condition of the management paying a sum of Rs. 15,000 a finality has been reached as far as the interim prayers are concerned. It is further stated that it is not a case of an employee of India Cements Ltd., being terminated, but it is more case of non-absorption of a workman on medical ground as per the terms of the settlement reached between the parties. According to the second respondent, the petitioner runs a cycle shop of his own keeping 8 or 10 cycles and he earns Rs. 25 to Rs. 30 per day by hiring cycles and undertaking repair works in cycles. As such, he is not entitled to any wages as per the proviso to S. 117-B of the Industrial Disputes Act. That the petitioner was drawing Rs. 475 as on 11th August, 1978 is denied as incorrect. It is further stated that it could be seen from the terms of the settlement that the employees would be getting Rs. 14 per day on the days they work and if the employees are eligible to any wages pending disposal of the writ petition, it could not be more than Rs. 364 a month. Even the backwages, on the basis of the last drawn salary from the date of reference, namely, 27th February, 1982, till 9th March, 1989, when they filed the counter affidavit, come approximately to Rs. 30,940 out of which more than 50 per cent has already been paid. According to the second respondent, it is open to this Court either to grant the claim under S, 17-B of the Industrial Disputes Act or reject the claim depending upon the facts and circumstances of each case and having regard to the facts and circumstances of this particular case, the petition is liable to be dismissed.
4. It is not disputed that the petitioner herein, who is the second respondent in the writ petition, was working as an earth loader at Karumapurathanur limestone quarry maintained by the writ petitioner/management and that he has put in more than nine years of service. As per the terms of the settlement, dated 8th June, 1978, the second respondent-management agreed to absorb the petitioner and other workers with effect from 1st April, 1978, into service subject to the condition of their being found fit medically by the medical officer free from defects noted in Clause (3) of the terms of the settlement and subject to the right of appeal to the District Medical Officer by the concerned worker. The Tribunal came to the conclusion that the petitioner made out a case that he is medically fit to do the work as earth loader in the quarry of the second respondent and that the termination of the petitioner by the second respondent-management is not legal. Further the Tribunal directed the second respondent to reinstate the petitioner in service with backwages from 27th February, 1982. The case of the petitioner workman is that since the employer has preferred the writ petition against the award passed by the first respondent/Tribunal, the second respondent shall be liable to pay to the petitioner the full wages last drawn by him. Further the payment of Rs. 15,000 at the time when the stay was obtained is not a bar to claim made under S. 17of the Industrial Disputes Act, that the petitioner herein is not employed and that he has not been receiving any adequate remuneration during the relevant period. On the other hand the claim of the petitioner is resisted by the Counsel for the second respondent mainly on the ground that he second respondent/company has not absorbed the workman and as such it is not case of employee of the second respondent being terminated. Further in view of the payment of Rs. 15,000 as per the order passed in an earlier application, it is not open to the petitioner to move for payment under S. 17Bof the Act.
5. As regards the first contention it is clear that prima facie the impugned order passed by the second respondent-management terminated the service of the petitioner with effect from 11th August, 1978, and the dispute, which is referred for adjudication to the Tribunal, is whether the termination is justified. While dealing with the said dispute, the Tribunal came to the conclusion that the termination is not legal and directed the management to reinstate him in service with back-wages. Hence it cannot be said that S. 17 - of the Industrial Disputes Act could not be attracted as it is only a case of non-absorption and not a case of termination. Hence this contention fails.
6. As regards the second contention about the finality reached in regard to payment because of the order passed in the stay application and the payment of Rs. 15,000 the learned Counsel for the petitioner submitted that the said payment was made only by way of interim arrangement in respect of the stay of the order directing reinstatement of the petitioner and in any event the said order will not be a bar for this Court to grant the relief under S. 17B. In this connection, the learned Counsel drew the attention of this Court to the decision in Bharat Singh. New Delhi Tuberculosis Centre, New Delhi : (1986)IILLJ217SC where their Lordships of the Supreme Court directed payment under S. 17B of the Act to the worker in spite of the fact that the management paid certain portion of the backwages. Similarly, in Unnis (A.). M. A. Khisar Hussain and Sons and Anr. : (1987)IILLJ484Mad a Division Bench of this Court directed payment under S. 17B of the Industrial Disputes Act in spite of the fact that some monetary compensation was directed to be paid based on the award. On going through the above decision and the relevant provisions of S. 17 - of the Industrial Disputes Act, I am of the view that the earlier interim order passed by this Court while disposing of the stay application directing the management to pay Rs. 15,000 will not be a ar to the workman to claim the wages last drawn by him and that any payment made by the management is to be deducted out of the same. Hence this contention of he second respondent fails.
7. As regards the last contention that the petitioner is running a cycle shop and is earning Rs. 25 to Rs. 30 per day, it has been stoutly denied by the petitioner in the reply-affidavit. He has also produced certificates from the village munsiff as well as village panchayat president to the effect that he is unemployed, that he is not doing any work and that he is not running any cycle shop. In the face of the certificates and the reply-affidavit, it cannot be said that the petitioner is running a cycle shop and is earning a sum of Rs. 25 to Rs. 30 as alleged. Hence for all these reasons, I have no hesitation in holding that the petitioner is entitled to ask for payment of wages under S. 17B of the Industrial Disputes Act from 24th July 1985, as prayed for and the payment of Rs. 15,000 already made is to be deducted out of the wages payable to the petitioner. According to the petitioner, he was drawing a salary of Rs. 475. But the same has been disputed by the second respondent management and they would contend in Para 9 of the counter-affidavit that as per the terms of the settlement the petitioner could not be entitled to more than Rs. 364 a month. The petitioner has not produced any record to substantiate the quantum of salary. Even accepting the statement of the respondent as correct, the petitioner is entitled to payment of wages at the rate of Rs. 364 per month.
8. In the result, the petition is allowed. The second respondent is directed to pay the petitioner workman the last drawn wages of Rs. 364 per month under S. 17B of the Industrial Disputes Act from 24th July 1985, and after deducting a sum of Rs. 15,000 already paid. However, in the circumstances of the case, there will be no order as to costs. The hearing of the writ petition is fixed on 16th August 1989, for final disposal.